Thursday, July 9, 2015

Why is everybody picking on the Supreme Court?!

"It is emphatically the province and duty of the judicial department to say what the law is."

 —  Chief Justice John Marshall

Political parties and politicians love to point fingers for what's wrong with the America, and in the last 15 years, perhaps no other institution received as much verbal abuse as the United States Supreme Court. When the nation's highest judicial authority rules on the constitutionality of laws and settles some of the most important disputes, one side praises the Court for their wisdom while the other derides the justices as if they're the most inept, unintelligent group to don black robes.

Since the turn of the millennium, the Court has ruled in a large number of landmark decisions that have dramatically altered the political and social landscapes of the United States. Yet, this is precisely what these justices are supposed to do. 

The job of the Supreme Court is to act as a court of final authority and make assessments about controversies involving precisely what the law means. The nature of the selection of the justices, their tenure, and the near finality of their decisions frustrates the losing side of any particular case. Their only response is to criticize the decision making as somehow unjust or undemocratic. Because of the fact that both liberals and conservatives have suffered serious blows to their political agendas through the decisions of the Supreme Court, both sides have attempted to politicize the judicial process to the best of their abilities.

The Supreme Court has become more politicized than what Americans would like, but it's not entirely possible to divorce the Court from the political process. The president has the power and responsibility of appointing justices to the Court, while the Senate must confirm these selections. As such, elected officials will attempt to influence the makeup and the decisions of the Court.  We must remember that each justice is a willful, flawed human being who must struggle to decide cases objectively.  Though the Supreme Court is more politicized, there's no reason to change the way we select justices, their tenure, or the current lineup of justices.

The Criticisms of the Supreme Court

Americans criticize the Court for making decisions that subvert the will of the majority. This criticism makes a few false presumptions. The Framers of the Constitution did not intend on the majority of the population to dictate policy in every instance. The nation held a great fear of the potential tyranny of a majority and James Madison noted as much in his oft referenced Federalist #10. One of the more pivotal questions he addressed was how to deal with a tyrannical group in the United States. When the dangerous group was in the minority, dealing with them was handled by merely outvoting them. However, what are we to do when the tyranny comes from the majority?

One of the reasons that we implemented a republic with elected representatives was to prevent the dangers associated with a more direct form of democracy. Madison believed that a small body of individuals would be more apt to make a good decision rather than a large group. We have a natural distrust for the masses because of how quickly they can be inflamed.

The will of the majority wasn't intended to lord over the nation's every policy and position, and these are evident in the Constitution. International treaties must be confirmed by two-thirds of the Senate. The president's vetoes can only be overridden by two-thirds of both houses of Congress.

The Constitution also contains an established set of rights held by all citizens, and their enumeration in the Constitution means that a majority cannot simply vote these rights out of existence. The will of the majority is restrained by the Constitution's difficult amendment process. It takes an overwhelming number of elected leaders to alter the foundation of our government and the rights of Americans.

Politicians bemoan the the Court's authority to interpret the Constitution, but what institution would they prefer handle that task? They overlook the fact that someone must resolve disputes about the law. Handing over the keys to the kingdom to the majority runs counter to what the Framers of the Constitution wanted.

Critics also point to the Court as out of touch with reality because they are elitist in nature. The current Court has five members who graduated from Harvard Law School, three from Yale, and one from Columbia. No one would doubt that these are three of the finest schools American has to offer, but I don't think it's fair to characterize the Court as elitist because of their respective alma maters. Would we not want the Supreme Court to have some of the most well-educated minds in the nation? Who would really tell their own children to turn down an Ivy League institutions for fear of being branded as elitist? 

The Court's internal policy of no camera coverage of proceedings has also brought criticism from various circles. A large number of Americans believe the Court should televise its proceedings, but the net effect from such a change would be a negative. The nature of television would augment the way in which cases were argued, whereby the attorneys arguing (and perhaps the justices) would be tempted to grandstand and make a spectacle rather than focusing on the issues at hand.

The lack of camera coverage also ignores the fact that the Supreme Court creates audio recordings of every case they hear and provides a transcript as well. Moreover, the Court is the only one of the three branches that explains its decision making in writing on every single issue. If anything, the other branches of government should be as transparent as the Supreme Court. Perhaps that's a reason why the Supreme Court has a higher approval rating than either the president or Congress.

The fact that justices on the Court do not receive their position through an election presents another problem for Americans. Critics want the justices held accountable to the people for their decision making. People quickly forget, however, that of the various levels of federal government, only the House of Representatives was originally meant to be elected by the people. Senators were chosen by their respective state legislatures, the president is chosen by the Electoral College, and members of the Supreme Court are appointed by the president. 

The federal judiciary was meant to have a layer of insulation from public opinion so that they could make decisions based on the law rather than popular sentiment. This also overlooks that a system of accountability already exists.  The justices can be impeached and removed from their post in the same process by which we can remove a president.

The Court's decisions also are subject to being superseded by amending the Constitution. That's precisely why the 11th Amendment came into existence. After the Supreme Court handed down a decision in Chisholm v. Georgia (1796), the states were bothered by the ruling that a state could be sued by a citizen from another state. Their response was to work together to amend the Constitution, which changed the scope of the judiciary's authority.

What happens when politicians do not achieve their objectives through the judicial system? They cry foul and resemble a child throwing a tantrum because they didn't get their way. Their response is to use political power to pressure the Court, which is precisely what our system was designed to resist.

The Politicization of the Court

Politicians have launched an offensive at the Supreme Court and they use every weapon at their disposal. Perhaps the most powerful weapon a politician holds is their access to the media.

In 1987, President Ronald Reagan appointed Robert Bork to a vacancy on the Supreme Court. Bork's resume was more than adequate, having been a law professor at Yale, a stint as Solicitor General, and then serving as a federal court of appeals judge. However, his conservative nature and his candid answers during his hearing in front of the Senate Judiciary Committee prompted many Democrats to become fierce opponents of Bork's confirmation.

Senator Ted Kennedy spearheaded a campaign to stop Bork's nomination. He strongly condemned Bork, stating,

Robert Bork's America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens' doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists could be censored at the whim of the Government, and the doors of the Federal courts would be shut on the fingers of millions of citizens for whom the judiciary is—and is often the only—protector of the individual rights that are the heart of our democracy ... President Reagan is still our president. But he should not be able to reach out from the muck of Irangate, reach into the muck of Watergate and impose his reactionary vision of the Constitution on the Supreme Court and the next generation of Americans. No justice would be better than this injustice.
Kennedy's statement in front of the Senate made its way into every major media outlet, despite the protestations of Bork and his supporters that none of the statements were true (they weren't).

Additionally, a series of television ads, narrated by famous actor Gregory Peck, attacked Bork as unfit for the high court. The wave of anger directed at Bork was so intense, newspapers somehow obtained a history of his video rentals in the hopes of finding some sensational piece of information.

The crusade against Bork was effective. His confirmation vote yielded only 42 votes for, and a surprising 58 against. The strong nature of the media feeding frenzy produced results for Democrats, and this was in 1987, before 24 hour news cycles were the norm and social media could spread a rumor across the world instantaneously. 

After the decisions by the Court to uphold the constitutionality of the Affordable Care Act and require all states to permit same-sex marriages, conservatives quickly weighed in about the poor decision making of the Court. They noted that "five unelected judges" uprooted the will of the people. A few critics called for impeachment of the justices.

Former Arkansas governor and current presidential candidate Mike Huckabee put the Court on blast, stating, "I will not acquiesce to an imperial court any more than our Founders acquiesced to an imperial British monarch. We must resist and reject judicial tyranny, not retreat."

Senator Ted Cruz was willing to go even further, claiming the two decisions represented "some of the darkest 24 hours in our nation's history." He suggested a radical plan that would have called for Supreme Court justices to face re-election every 8 years, whereby they would need a majority of the nation to vote for them, and at least half the states would have to approve of the justice or he or she would be barred from ever returning. 

Cruz's demagoguery is disgusting and it's more than fair to ask if he and fellow conservatives were this critical of the Supreme Court when it's ruling in Bush v. Gore, which allowed for a Republican to take the White House in 2000. Flash back to 2010, when conservatives were overjoyed at the ruling in Citizens United v. FEC, which allowed for corporations to engage in nearly unlimited spending on campaign activities. Republicans were also pleased last summer when the Court overturned certain provisions of the Voting Rights Act of 1965.

Of course, the reverse of this trend is also true. Democrats are just as hypocritical about the Court's decision making. After the Citizens United decision, President Obama fired shots at the Court during his State of the Union address in 2010 — while the justices were in attendance.

Current House Minority Leader Nancy Pelosi derided the Court last year after a decision that loosened campaign finance rules, claiming, "Nothing again is more disillusioning to the public than the vast display of money spent in campaigns. ... Our founders sacrificed everything — their lives, their liberty, their sacred honor — for a democracy. A government of the many, not a government of the money."

The comments from party leadership on both sides bring about a simple truth. When the Supreme Court doesn't rule in the manner consistent with your liking, they're elitist bums out of touch with reality. When your party wins, you applaud them for upholding the cause of freedom and democracy.

The resentment from Court decision making can also be gleaned from the confirmation process itself. Prior to Bork's failed nomination, the process of selection and confirmation of a justice was far less political. The selection of a Supreme Court justice was considered to be a choice that rested primarily with the president. The Senate's role in confirming a nomination appears to have been almost a formality unless a serious objection existed. Prior to 1965, most Supreme Court justices were confirmed with only a voice vote in the Senate. 

When looking at the confirmation votes of the current justices, the number of 'nay' votes is startling when you examine the four most recent appointees compared to the four senior most justices (I've excluded Clarence Thomas because his high number of nay votes was predicated upon accusations of sexual harassment).

How is it possible that Antonin Scalia was confirmed by the Senate with not a single vote in opposition? Scalia is arguably one of the most conservative justices in the last 100 years and no one stood against this appointment made by President Ronald Reagan? Ruth Bader Ginsburg and Stephen Breyer were liberal appointees under the Clinton administration and Republicans only mustered 12 no votes? Hardly any opposition to these four justices existed.

Contrast that with the four most recent appointees, all of whom were appointed by two polarizing presidents. The mere correlation of increased no votes doesn't necessarily mean the process has become politicized, but when you examine the no votes in each of these four cases, it becomes more difficult to deny a political slant to the process.

In Elena Kagan's confirmation vote, 36 of the 37 no votes came from Republicans. All 31 of the no votes for Sonia Sotomayor came from Republicans. Party lines were apparent in Samuel Alito's confirmation also, as 40 of his 42 no votes came from Democrats (one Republican 'no' came from Lincoln Chafee, who has since defected to the Democrats and the other 'no' was a left-leaning independent). Finally, all 22 no votes against Chief Justice John Roberts were from Democrats.
  
What does it say about the process of selection Supreme Court justices when it appears the confirmation process is polluted by partisanship?


The Supreme Court's decision making during the Roberts Court is worth examining because of the ideological makeup of the membership, which includes four liberals, four conservatives, and one Anthony Kennedy, who is considered 'the swing vote.'

Since the current Court was set in 2010, the Supreme Court has heard 393 cases. Of these cases, 71 of them were 5-4 split decisions. These decisions are of interest because they frequently deal with some of the more divisive policy issues in the nation. In these 71 instances, the four conservative justices sided together and the four liberal justices did the same in an amazing 58 instances. How is this possible that the same eight justices were divided the same way in so many controversial cases? 

I suppose it's possible that those eight justices were divided in exactly the same manner due to coincidence or similar judicial interpretations of the law, but it's far more likely these justices were influenced by their own ideological thoughts and beliefs (which match their votes in each of the 58 cases). The justices themselves have politicized the process by having a preconceived idea of what the outcome ought to be, and then manipulating the information and facts to suit that conclusion.

The politicization of the Court has also granted an immense amount of power to Anthony Kennedy. Because Kennedy is the wild card among the justices, he ends up being the decisive vote. Kennedy has literally decided the outcome of American policy in 14.7% of the cases during the last five years. No other official in the nation, not even the president, has enjoyed such unilateral decision making authority.

Keeping things as they are

Despite the politicization of the Supreme Court, the current system we have actually is the best defense against an even greater danger to society. The media blitz from members of Congress and the president has not corrupted the system to the point where the Court isn't capable of carrying out their duties and interpreting law correctly.

While the justices are divided in many cases, there's another trend in their decision making of which we overlook. During the last five years, 171 of 393 the cases heard by the Court, the decision was unanimous. This accounts for an astonishing 43.5% of the time where there is no dissent among the nine justices. Though the justices are divided on controversial policy cases, they speak with a unified voice nearly half of the time. This points to the Court's ability to adjudicate with accuracy, considering the liberal and conservative justices are typically in agreement.

The attacks on the Court from the other branches of government was anticipated by the Framers, who saw the Court as an "excellent barrier to the encroachments and oppressions of the representative body.  And it is the best expedient which can be devised in any government to secure a steady, upright, and impartial administration of the laws." This excerpt, from Alexander Hamilton's Federalist #78, is noting that the judiciary is not a flawless remedy, but the best option that we have.

Moreover, the Court has weaknesses just as the other two branches. The justices are kept in check by the threat of impeachment, and the public exercises influence over the president and the Senate, who bear the responsibility for choosing and confirming the members of the Court. 

Congress holds the power of the purse, deciding how to raise and allocate tax dollars. The president possesses the power of the sword, as the commander-in-chief of armed forces. These branches were given their vital authority explicitly by the Constitution, but the Court is given no such enumeration in our founding document. The Court, "... may be said to have neither force nor will but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments." The Court has a political twinge that must disappear. Yet, the effects of a politicized Court are limited.

The Supreme Court will always have some semblance of political nature within its membership, but it was never intended on being perfect. The system in place has allowed for the politicization of the Court, but not its corruption. We should be working toward a "more perfect union," but don't believe the hype. Changing the Court would only damage the republic, and I doubt American politicians want the change they seem to advocate.

Members of Congress and the president may publicly denigrate the judiciary, but that's about as far as they're willing to go. A Supreme Court justice hasn't been impeached in more than 200 years, and no justices has ever been removed. Neither Democrats nor Republicans have made any serious effort to put together a Constitutional amendment, and the executive branch hasn't been threatening to not enforce the decisions of the Supreme Court.

So why all the anger directed at the Court? Because the Court is an easy target. Sitting justices typically shun cameras in all settings and rarely give interviews. They do not publicly rebuke those who attack them, nor do they attempt to persuade citizens with grandiose speeches or false promises of reform. The Supreme Court is stoic in nature, always keeping a stiff upper lip. Politicians count on the Court to behave in this manner. 

When politicians can point to the Court as "the problem" in America, it deflects the attention away from themselves and their own failures. If any of these politicians had any serious qualms about the decision making of the Court, they would have taken steps towards changing the system. The Supreme Court provides other members of the government with a convenient whipping boy, and they're happy to keep things as they are, lest these politicians might have to take responsibility.

If we want to hold people accountable for bad policy or poor decision making in this nation, look to the other two branches of government. We have a history of giving poor presidents a second term. Incumbents in Congress tend to be re-elected at more than a rate of 90%. And they want us to believe the Supreme Court is the problem? 

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